R (on the Application of Axo, A Child, by her Litigation Friend Jxo) v First-Tier Tribunal (Social Entitlement Chamber)

Hearing dates: 8 and 9 November 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 11 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The appellant's mother was subjected to domestic abuse by her ex-partner over a long period. A number of state agencies were aware of that history and had been involved in efforts to protect the appellant's mother from harm. However, on 15 October 2011 the appellant's mother was murdered by her ex-partner. The appellant was then 5 years old.

The appellant applied to the Criminal Injuries Compensation Authority (“CICA”) for compensation. On 29 November 2012 CICA awarded her £25,500, comprising £5,500 for bereavement and £20,000 for loss of parental services (the “CICA Compensation”).

The appellant subsequently brought civil proceedings against three state agencies (the police, social services and probation, the “state defendants”) alleging breaches of Articles 2 and 3 of the European Convention on Human Rights (“ECHR” or “Convention”) and seeking damages under the Human Rights Act 1998 (“ HRA”) which implements the ECHR into domestic law. The state defendants offered to settle the appellant's claims for £15,000, agreeing that £10,000 of that amount related to the appellant's claim for breach of Article 2 and the remaining £5,000 related to the appellant's claim for breach of Article 3. The appellant, still a minor and acting by her litigation friend, accepted that offer in principle. Master McCloud approved the settlement on 17 September 2019 (the “ HRA Damages”).

On 20 November 2019, CICA sought repayment of part of the CICA Compensation out of the HRA Damages. CICA asserted that the HRA Damages were paid “in respect of the same injury” as the CICA Compensation earlier received, applying the terms of the CICA statutory scheme. That decision was upheld on internal review and on appeal to the First-tier Tribunal. The appellant then sought a judicial review in the Upper Tribunal which succeeded in part by overturning the First-tier Tribunal's decision that the £5,000 in settlement of the Article 3 claim was payable to CICA; but the Upper Tribunal upheld the First-tier Tribunal's decision in so far as it related to the £10,000 paid in settlement of the Article 2 claim. That latter aspect of the Upper Tribunal's decision is now under appeal.

The issue raised by this appeal is whether CICA is entitled to claim all or any part of the £10,000-worth of HRA Damages paid in settlement of the Article 2 claim. That issue turns, centrally, on the scope and meaning of paragraph 49(1) of the 2008 Criminal Injuries Compensation Scheme (the “2008 Scheme”) which imposes a requirement on a person who has benefited from a payment under that scheme to repay it if they receive a payment from another person “in respect of the same injury”.

Permission to bring this appeal was granted by Dingemans LJ on 8 March 2023. He also granted anonymity for the appellant and her litigation friend. The appellant is now 17 and she remains a protected party. She pursues this appeal by her maternal grandmother acting as her litigation friend.

The First-tier Tribunal is the named respondent to this appeal but has played no part in it. The de facto respondent is CICA, named as interested party.

The 1995 Act and the 2008 Scheme in Outline

The United Kingdom ratified the 1983 European Convention on the Compensation of Victims of Violent Crimes (the “Compensation Convention”) on 7 February 1990. The Compensation Convention came into force in the UK on 1 June 1990 and was implemented into domestic law by the Criminal Injuries Compensation Act 1995 (the “1995 Act”) which put the previously non-statutory compensation scheme on a statutory footing.

The first scheme under the 1995 Act came into force on 1 April 1996. By the time of the events in question in this appeal, the 2008 Scheme had succeeded the first (and second) scheme. A further revised scheme was implemented on 13 November 2012 (amended on 13 June 2019) which is not relevant for present purposes (although I note that its implementation date in fact preceded the payment of the CICA Compensation in this case by a short period of a week or two). It is the 2008 Scheme which is in issue in this appeal.

Section 1 of the 1995 Act provides:

“1. The Criminal Injuries Compensation Scheme

(1) The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.

(2) Any such arrangements shall include the making of a scheme providing, in particular, for—

(a) The circumstances in which awards may be made; and

(b) The categories of person to whom awards may be made.

(3) The scheme shall be known as the Criminal Injuries Compensation Scheme.

(4) In this Act –

…

“award” means an award of compensation made in accordance with the provisions of the Scheme;

“claims officer” means a person appointed by the Secretary of State under section 3(4)(b);

“compensation” means compensation payable under an award;

“criminal injury”, “loss of earnings” and “special expenses” have such meaning as maybe specified;

“the Scheme” means the Criminal Injuries Compensation Scheme;

“Scheme manager” means a person appointed by the Secretary of State to have overall responsibility for managing the provisions of the Scheme (other than those to which section 5(2) applies); and

“specified” means specified by the Scheme.”

The amount of compensation payable is determined according to s 2 of the 1995 Act, including provision for a standard amount of compensation determined by reference to a tariff prepared by the Secretary of State as part of the Scheme (the “Tariff”, of which more later), and subject to such maxima as may be specified. In addition, there is provision for loss of earnings or special expenses in certain cases, as well as “in cases of fatal injury, such additional amounts as may be specified or otherwise determined in accordance with the Scheme” (s 2(2)(d)).

Section 3(1) of the 1995 Act provides that the Scheme may include provision for certain events, including at s 3(1)(d) “for the whole or any part of any compensation to be repayable in specified circumstances”.

Section 5(1) of the 1995 Act confers a right of appeal against a review decision of CICA to the First-tier Tribunal.

The following are features of the 2008 Scheme (references in square brackets are to paragraphs of that scheme):

(1) The 2008 Scheme is intended to provide compensation to, or in respect of, “persons who have sustained criminal injury” ([1] and [6(a)], reflecting s 1(1) of the 1995 Act).

(2) Appeals against decisions taken on review under the 2008 Scheme are to be determined by the First-tier Tribunal ([2]).

(3) A “criminal injury” is defined as one or more personal injuries ([9]) sustained in and directly attributable to a crime of violence ([8(a)]).

(4) Personal injury is defined to mean a physical injury, including a fatal injury, as well as a mental injury ([9]).

(5) Standard compensation is payable by reference to the nature of the injury according to the description in the Tariff ([23], [26]–[[29]). There is provision in addition for loss of earnings ([30]–[34]) and special expenses ([35]–[36]).

(6) Where the victim of a criminal injury has died, compensation may be paid to a “qualifying claimant” ([6(b)]) which expression includes the natural child of the person who has been killed ([38(2)(c)]). Where the victim has died and if the death was in consequence of the injury, the award may include standard compensation as well as compensation for dependency and for the loss of a parent ([38(1)]).

(7) The maximum award that may be made in respect of the same injury is £500,000 ([24]).

The 2008 Scheme is supplemented by a number of notes including Note 3 which sets out multipliers, discount factors for assessing accelerated receipt of compensation and a life expectancy table. There then follows the Tariff which contains levels of compensation and amounts for specified types of injury.

The 2008 Scheme contains provision for deduction from compensation, or repayment of compensation already paid, in the event that other payments in respect of the same injury are made at [45]–[49]. Paragraph [48] provides for CICA awards to be reduced by the full value of any payment in respect of the same injury which the applicant has received or to which the applicant has any present or future entitlement, including the payment of damages pursuant to any order of court or in settlement of any claim. Paragraph [49] provides that CICA can demand repayment of amounts received subsequently in respect of the same injury; it is in the following terms:

“49. (1) Where a person in whose favour an award under this Scheme is made subsequently receives any other payment in respect of the same injury in any of the circumstances mentioned in paragraph 48, but...